93 Decision Citation: BVA 93-02647
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-21 669 ) DATE
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THE ISSUE
Entitlement to an increased rating for residuals of fracture
of the L3 and L4 vertebrae, with degenerative arthritis and
slight subluxation, currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
F. Judge Flowers, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of the
Detroit, Michigan, Regional Office (hereinafter RO). The
veteran served on active duty from November 1960 to December
1964. In a rating decision dated in July 1990, an increased
rating was denied for the veteran's low back disorder. The
notice of disagreement was received in August 1990. A
statement of the case was issued in September 1990. The
substantive appeal was received in October 1990. A
supplemental statement of the case was issued in December
1990. In a decision dated in August 1991, the claim was
remanded by the Board of Veterans' Appeals for additional
development. A supplemental statement of the case was
issued in November 1991. A supplemental statement of the
case was issued in May 1992. The case was received and
docketed at the Board in October 1992. The veteran has been
represented throughout his appeal by the Disabled American
Veterans. That organization submitted additional written
arguments to the Board in October 1992. The case is now
ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that he has constant pain in the low
back and suffers with painful muscle spasms of the low
back. He states that he has lost his job as a result of his
low back manifestations.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that a preponderance of the evidence
supports the veteran's claim for an increased rating for a
low back disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran has some tenderness of the low back and
moderate to severe limitation of motion.
3. The veteran has X-ray evidence of arthritic fusion of
L3-L4, associated subluxation, disc space narrowing and
severe arthritis of the low back.
4. The veteran's low back manifestations more nearly
approximate the criteria for the next higher rating.
CONCLUSION OF LAW
An evaluation of 50 percent for the veteran's low back
disorder, including 10 percent added for demonstrable
deformity of a vertebra, is warranted. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. Part 4, 4.7, Codes 5003, 5285,
5292 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
We note that we have found that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). That is, we find that he has presented a claim which
is plausible. We are also satisfied that all relevant facts
have been properly developed. The veteran's service medical
records are in the file and there is also of record a number
of post service private and VA medical records to include
the reports of a number of VA examinations. Hence, no
further assistance to the veteran is required to comply with
the duty to assist him as mandated by 38 U.S.C.A. § 5107(a)
(West 1991).
The veteran's service medical record reveals that he
sustained a fracture of the body of L4, the lateral
processes of L3 and L4, and the spinous processes of L3
during service in 1964. He was placed in a body cast and
subsequent X-rays revealed callous formation in the L3,
L4 disc space and a well-healed callus over the lateral
processes of L3 and L4 and spinous process of L3. The
veteran was placed on physical therapy and progressed
satisfactorily. He subsequently became free of symptoms and
was given convalescent leave. Upon his return, he stated
that he felt well, had good range of motion of the back, and
was free of any back complaints. He was determined fit for
duty.
A VA examination was conducted in April 1978. The veteran
complained of constant pain and stiffness in the low back.
The examination revealed mild kyphosis at L3 and muscle
spasms bilaterally with tenderness. Forward flexion was to
80 degrees and backward extension was to 35 degrees.
Lateral bending was to 40 degrees right and left, and
rotation was to 20 degrees right and left. There was
reversal of the lumbar curve on forward bending. There was
a diagnosis of residuals of fracture of the vertebrae of
L3 and L4 with degenerative arthritis and slight subluxation
between L3 and L4 and narrowing of the disc space of L2.
In a rating decision dated in July 1978, the veteran was
service connected for residuals of fractured vertebrae,
L3 and L4, with degenerative arthritis with slight
subluxation. He was assigned a 30 percent evaluation.
Of record is a private medical report dated in July 1990.
It was indicated in the report that the veteran should not
continue to work in a public school as a janitor due to his
back disorder. The examiner opined that the veteran should
not be employed in physically manual work as a custodian or
janitor.
A VA examination was conducted in October 1991. The veteran
complained of pain in the low back. He reported working as
a stockroom manager. The examination revealed positive
straight leg raising at 30 degrees, right and left. Forward
flexion was to approximately 50 degrees, at which time the
veteran developed pain. The veteran had some tenderness in
the low back. His muscle strength was 5/5 and sensorium was
intact. X-rays revealed degenerative joint disease of
L3-5 with right scoliosis.
A VA examination was conducted in March 1992. The veteran
complained of severe back pain which radiated to both hips.
He indicated that he had no relief with Motrin. He denied
bowel or bladder changes and denied numbness or tingling in
the lower extremities.
When examined, his gait was normal. There was slight
tenderness at L3-4. Range of motion tests revealed flexion
to 30 degrees and extension 0 degrees. Lateral bending was
to 30 degrees and straight leg raising was negative. Motor
strength was normal. Sensation was intact. Deep tendon
reflexes were two plus. An X-ray revealed no change in
L3-L4 fractures with bridging osteophytes and associated
subluxation. Noted were L2-L3 disc space narrowing and
large bridging osteophytes. It was indicated by the
examiner that X-rays revealed L3-L4 fusion and severe
arthritis of L2, L3, and L4. There was positive scoliosis.
There was an assessment of status post fracture to
L3-L4 vertebral body, treated with body cast, and current,
severe, debilitating back pain and severe arthritis
evidenced by X-ray.
The law provides that a 20 percent rating is warranted for
moderate limitation of motion of the lumbar spine. A
40 percent rating is assigned for severe limitation of
motion of the lumbar spine. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4, Code 5292 (1991). When rating residuals
of fracture of the vertebra, a 10 percent rating is added
for demonstrable deformity of a vertebral body. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. Part 4, Code 5285 (1991).
In applying the law to the existing facts, the Board finds
that the veteran's low back disability picture more nearly
approximates the criteria for a 50 percent evaluation. This
assessment is supported by the fact that the two most recent
VA examinations revealed some tenderness of the low back and
moderate to severe limitation of motion of the low back.
Indeed, when most recently examined, forward flexion was
only to 30 degrees and the veteran was unable to extend the
low back. Significantly, X-rays reveal arthritic fusion of
L3-L4, scoliosis, and severe arthritis of L2, L3 and L4.
There was some subluxation by X-ray and disc space
narrowing. There is also evidence of record that the
veteran was released from a janitorial position for which he
had recently been hired due to his back disorder. The
Board, therefore, concludes that the preponderance of the
evidence supports the veteran's claim for a 50 percent
evaluation for his low back disorder to include the 10
percent added for demonstrable deformity of a vertebra. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.7,
Codes 5003, 5285, 5292 (1991).
ORDER
An increased rating for a low back disorder is granted
subject to the laws and regulations governing monetary
awards.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
EUGENE A. O'NEILL
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.